St. Louis-San Francisco Ry. Co. v. Mcintosh, Co.

• Decision Date: 14 October 1924
• Docket Number: Case Number: 14518
• Citation: 1924 OK 938,103 Okla. 246,229 P. 1064
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. v. McINTOSH, Co. Treas.
• Court: Oklahoma Supreme Court

1924 OK 938

229 P. 1064

103 Okla. 246

ST. LOUIS-SAN FRANCISCO RY. CO. v. McINTOSH, Co. Treas.

Case Number: 14518

Supreme Court of Oklahoma

Decided: October 14, 1924

Syllabus

¶0 1. Counties--Limit of Tax Levy for "Current Expenses" -- General Road and Bridge Fund Included.

A county levy for general road and bridge fund of the county is part of the current expenses of the county, and such levy, together with other levies for current expenses, cannot exceed the limit fixed by section 9692, Comp. Stat. 1921.

2. Same--Free Fair Fund Included.

A county levy for free fair fund of the county is part of the current expenses of the county, and such levy, together with other levies for current expenses, cannot exceed the limit fixed by section 9692, Comp. Stat. 1921.

3. Same--Excess Levy--Recovery by Taxpayer.

An unauthorized tax levy by the county excise board which exceeds the limit for current expenses, as provided by section 9692, Comp. Stat. 1921, is illegal, and such part of the levy as is excessive, when paid under protest, may be recovered.

W. F. Evans and Stuart, Sharp & Cruce, for plaintiff in error.

George F. Short, Atty. Gen., and Kathryn Van Leuven, Asst. Atty. Gen., for defendant in error.

JONES, C.

¶1 This action was instituted in the district court of Rogers county, Okla., on the 21st day of January, 1922, by the appellant, plaintiff in the trial court, and against the appellee, defendant in the trial court, to recover taxes paid by the plaintiff under protest. The defendant filed its answer, which is in the nature of a general denial. and the case was tried on an agreed statement of facts. Plaintiff's petition sets forth three separate causes of action, but the judgment rendered, based on the first cause of action, is the only matter with which we are here concerned. The material portion of the agreed statement of facts is as follows:

"It is hereby further agreed and stipulated that a tax levy of eight mills was made for the benefit of Rogers county, state of Okla., for the fiscal year beginning July 1, 1921; that the assessed valuation of the property of the plaintiff in said taxing jurisdiction for said year was $ 1,943,900; that the said levy of eight mills is divided as follows, to wit:

Fund Rate levy

Current 3.80 Mills

Road and bridge 1.02 Mills

Free fair .20 Mills

Separate school .50 Mills

Const. of state highway 1.98 Mills

Sinking .50 Mills

Total 8.00 Mills

¶2 It was further agreed that the taxes involved were paid at maturity and under protest, and that four mills is the limit for current expenses in Rogers county. The cause was submitted to the court without the intervention of a jury on the 15th day of January, 1923, and resulted in judgment for the defendant on the first cause of action, from which appeal was duly taken. And that particular portion of the judgment of the trial court complained of, is as follows:

"Whereupon, it appearing to the court that the levy for road and bridge purposes and free fair purposes in said county did not constitute a part of the current expenses of said county, the limit of 4 mills for current expenses as fixed by chapter 262 of the 1917 Session Laws has not been exceeded; (section 9692, Comp. Stat. 1921) and,

"Whereupon, it appeared to the court that a separate levy could be imposed for road and bridge purposes, and a separate levy for free fair purposes,

"It is, therefore, ordered, adjudged and decreed that although the plaintiff herein did, within the time provided by law, pay all of the taxes on its property in said county, on account of and by reason of said levies of 1.02 mills for road and bridge purposes, and 0.20 mills for free fair purposes, and that said taxes were paid before the same became delinquent, and at the time of payment thereof plaintiff delivered to the defendant its protest in writing, setting forth the reason why said protest was made, as well as the amount of taxes so paid under protest, and that said suit was instituted by plaintiff for the recovery of the amount of taxes paid under protest, within 30 days after the payment of the same, that plaintiff have and recover nothing from the defendant herein pursuant to taxes paid under protest pursuant to said levies for road and bridge purposes, and free fair purposes."

¶3 The appellant in its assignments of error set forth five different specifications of error: First, that the court erred in holding that the levy of 1.02 mills for general road and bridge fund was not a part of the levy for current expenses, and makes a similar specification of error concerning the 0.20 mill levy for free fair purposes. The first and second specifications of error we think cover the material issues here involved. The first proposition, wherein is involved the levy of 1.02 mills for general road and bridge funds, wherein the court held that same did not constitute a part of the current fund of the county, and of which the appellant complained, has been determined favorably to appellant's contention in the recent case of Payne, Federal Agent, et al. v. Ross, County Treasurer, 95 Okla. 273, 219 P. 144, and is conclusive of this question, wherein this court held:

"A county levy for general road and bridge fund of the county is part of the current expenses of the county, and such levy, together with other levies for current expenses, cannot exceed the limit fixed by section 9692, Comp. Stat. 1921."

¶4 The appellant makes no further contention against the doctrine of this case, consequently the only question for the consideration of the court at this time is whether or not the levy for 0.20 mills for free fair is such a fund or levy as comes within the statutory limitations of four mills, it having been conceded by the parties hereto that 4 mills is the limit for current expenses in Rogers county. The appellant calls attention to the Act of the Legislature of 1915, c. 179, section 8, as amended by section 3, c. 89 of Sess. Laws 1921, as follows:

"Section 8. When the county commissioners shall have declared this act in full force and effect, the county excise board shall levy not to exceed one-fourth of one mill upon the total valuation of the county, for free fair purposes on the estimate of the executive board of the county fair association."

¶5 Section 9692, Comp. Stat. 1921, places a limit of four mills, which as heretofore stated, is conceded to apply to Rogers county, for the levy for current expenses. From a careful reading of the Act of the Legislature, providing for a levy of not to exceed one-fourth mill for free fair purposes, we fail to find any provisions which would exempt it from the 4 mill limitations imposed by section 9692. Appellant cites the case of St. Louis-San Francisco Railway Company v. Caldwell, 75 Okla. 153, 182 P. 688. In that case the county excise board had made a levy of the full statutory limitation, of four mills for current expenses. There was another statute then in force which permitted the county excise board, after estimating the expenses for the year, to add an additional ten per cent. for delinquent taxes. When this ten per cent. additional was added, the limitations prescribed by section 9692 were passed. Notwithstanding the fact that a specific statute granted authority to levy this additional ten per cent., the court held that the ten per cent. could only be levied when it stayed within the limitations prescribed by the statute. The following quotation is taken from the syllabus:

"Unless otherwise authorized by a vote of a municipality affected, the excise board is without authority to levy a tax in excess of the limit provided in chapter

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